TMI Blog2019 (8) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... before 31.03.2017 and sent for dispatch within a reasonable time. Delay involved in the instant case was more than 9 months which is unreasonable and the department could not explain the reasons for such long delay in serving the order to the assessee as well as the AO, we hold that the order was passed beyond the time limit allowed under the Act, hence, the order passed u/s 263 was unsustainable and quashed. Accordingly the appeal of the assessee is allowed. - I.T.A.No.01/Viz/2018 - - - Dated:- 21-8-2019 - Shri V. Durga Rao, Judicial Member And Shri D.S. Sunder Singh, Accountant Member For the Appellant : Shri I.Kama Sastry, AR For the Respondent : Shri D.K.Sonowal, CIT DR ORDER PER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : This appeal is filed by the assessee against the order of the Pr.Commissioner of Income Tax [Pr.CIT]-1, Visakhapatnam vide F. No.Pr.CIT-1/VSP/263/32016-17 dated 27.03.2017 for the Assessment Year (A.Y.)2012-13. 2. Ground No. 1 is related to the issue of order passed u/s 263 by the Ld Pr.CIT-1 is barred by limitation. In this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee beyond 8 months is invalid. 3. On the other hand, the Ld.DR argued that as per the Income Tax Act, order required to be passed on or before 31.03.2017, accordingly, the Pr.CIT had passed the order on 27.03.2017 which is supported by the order sheet entry. The AO also produced record of the Pr.CIT as per which the order was stated to be passed on 27.03.2017. Hence, argued that since the order was passed before 31.03.2017 it was not barred by limitation, and the order is valid, accordingly requested to uphold the order of the Ld.Pr.CIT and dismiss the appeal of the assessee. 4. We have heard both the parties and perused the material placed on record. As per the records of the Ld.Pr.CIT and the order sheet entry, the order was passed on 27.03.2017, however, as per the information placed before us by the assessee, the order was served on the assessee on 26.12.2017 after lapse of 9 months. As per page No.15 of the paper book, the assessee had demonstrated that the order was posted on 23.12.2017 and delivered on 27.12.2017. As submitted by the Ld.AR, the copy of the order of the Ld.Pr.CIT u/s 263 dated 27.03.2017 was also served on the concerned AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order was back dated. No other evidence was produced by the departmental representative to show that the cited order was passed u/s 263 before 31.03.2017 and sent for dispatch within a reasonable time. Therefore, the case law relied upon by the Ld.DR is not applicable in the assessee s case. The assessee relied on the decision of Hon ble High Court of Andhra Pradesh in Ushodaya Enterprises Limited (supra), wherein Hon ble High Court held that the order served beyond 8 months is invalid. For the sake of clarity and convenience, we extract para No.29 of the cited order of the Hon ble High Court of Andhra Pradesh which reads as under : 29. The next question that has been argued before us is the issue of limitation. The impugned order of the Commissioner bears the date 20-11- 1995. It purports to revise the order dated 25-11-1991 passed by the Appellate Deputy Commissioner, Kakinada. That order was served on the petitioner on 27-1-1992. For setting aside that order in exercise of revisional powers under Section 20(1), a limitation of 4 years from the date of service of notice is prescribed. It is not in dispute that the last date for passing a final order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on 05.12.2013 i.e after 9 months. For a query from the bench, the Ld.DR replied that the assessment order and demand notice was served through the departmental notice server. Though the Ld.DR argued that the assessment order was passed on 04.03.2013, no evidence was placed before us to establish that the order in fact was passed on 04.03.2013. Though the limitation period is available for passing the assessment order, but not for service of the assessment order and demand notice, the order must be served on the assessee within the reasonable time as held by the various high courts. The Ld.CIT(A) relied on the decision of CIT Vs. Subrata Roy cited supra, wherein, the facts are completely different and distinguishable. In the said case, the order was passed u/s 143(3) on 31.12.2008, but the assessee refused to accept the order, hence the assessment order and the demand notice was sent through registered post which caused delay of 47 days and the Hon ble High Court held that the delay of 47 days is not time long enough which can even make any one suspicious as regards correctness of the date of the order. In the instant case, there was no such default or re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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